IN THE Supreme Court of Florida

TIMOTHY LEE HURST, Appellant, v. Case No. SC12-1947 STATE OF FLORIDA,

Appellee. ______________________________________________________________________________ THOMAS BEVEL, Appellant, Case No. SC14-770 v. STATE OF FLORIDA, Appellee. ______________________________________________________________________________ TERENCE OLIVER,

Appellant, v. Case No. SC12-1350 STATE OF FLORIDA,

Appellee.

AMENDED BRIEF OF AMICI CURIAE JUSTICE HARRY LEE ANSTEAD, JUDGE ROSEMARY BARKETT, MARTHA BARNETT, TALBOT D’ALEMBERTE, HANK

COXE, JUSTICE GERALD KOGAN, FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, FLORIDA CAPITAL RESOURCE CENTER, AND FLORIDA

CENTER FOR CAPITAL REPRESENTATION, ON BEHALF OF APPELLANTS

Robert C. Josefsberg Robert G. Kerrigan Podhurst Orseck, P.A. Kerrigan, Estess, Rankin, McLeod City National Bank Bldg. & Thompson, LLP 25 West Flagler St., Ste. 800 P.O. Box 12009 Miami, FL 33130 Pensacola, FL 32591 (305) 358-2800 (850) 444-4444 Fla. Bar No. 40856 Fla. Bar No. 134044 rjosefsberg@podhurst.com bob@kerrigan.com

Filing # 40987632 E-Filed 05/03/2016 05:39:39 AMR

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Karen M. Gottlieb Sonya Rudenstine Fla. Center for Capital Representation Attorney at Law FIU College of Law 528 N. Main Street 11200 S.W. 8th Street, RDB 1010 Gainesville, FL 32601 Miami, FL 33199 (352) 359-3972 (305) 348-3180 Fla. Bar No. 0711950 Fla. Bar No. 0199303 srudenstine@yahoo.com Karen M. Gottlieb@gmail.com

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TABLE OF CONTENTS

Table of Authorities .................................................................................................. ii Statement of Identities and Interests of Amici Curiae .............................................. v Summary of the Argument ........................................................................................ 1 Arguments and Citations of Authority ...................................................................... 3 I. Because the United States Supreme Court held Florida’s death penalty

unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole ........................................................................................ 3

A. Basic rules of statutory construction require that this Court apply the unambiguous, plain language of §775.082(2) ...................... 5

B. Section 775.082(2) unambiguously requires that all capital

felons whose death sentences have been imposed under the now-unconstitutional statute be resentenced to life in prison .................................................................................................... 6

C. Because the unambiguous plain language of section

775.082(2) produces a reasonable, non-absurd result, the Court need not consider the statute’s legislative history, under its rules of statutory construction ............................................... 9

D. The legislative history of section 775.082 also supports the

remedy required by the statute’s plain language ................................ 12

E. The rule of lenity also requires resentencing to life imprisonment without any opportunity for parole ............................. 19

Conclusion .............................................................................................................. 20 Certificate of Service .............................................................................................. 22 Certificate of Compliance ....................................................................................... 22

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TABLE OF AUTHORITIES

Cases Alachua Cty. v. Expedia, Inc., 175 So. 3d 730 (Fla. 2015) ....................................... 5 Anderson v. State, 267 So. 2d 8 (Fla. 1972) ............................................... 11, 15, 17 Austin v. State ex rel. Christian, 310 So. 2d 289 (Fla. 1975) ................................. 10 C.M.T. v. State, 550 So. 2d 126 (Fla. 1st DCA 1989) .............................................. 7 Conroy v. Aniskoff, 507 U.S. 511 (1993) ................................................................ 10 Diamond Aircraft Indus. Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013) ................. 5 Donaldson v. Sack, 265 So. 2d 499 (1972) ............................................................. 15 Fla. Dep’t of State, Div. of Elections v. Martin, 916 So. 2d 763 (Fla. 2005) ........... 8 Furman v. Georgia, 403 U.S. 952 (1972) ............................................................... 12 Furman v. Georgia, 408 U.S. 238 (1972) ................................................... 11, 14, 17 Gomez v. Vill. of Pinecrest, 41 So. 3d 180 (Fla. 2010) ............................................. 6 Grip Dev. Inc. v. Caldwell Banker Residential Real Estate, Inc., 788 So. 2d 262 (Fla. 4th DCA 2000) ..................................................................... 7 Hill v. Davis, 70 So. 3d 572 (Fla. 2011) ................................................................... 5 Horsley v. State, 160 So. 3d 393 (Fla. 2015) ............................................................ 8 Hurst v. Florida, __ U.S. __, 136 S. Ct. 616 (2016) ................................................. 4 In re Baker, 267 So. 2d 331 (Fla. 1972) ........................................................... 10, 15 J.M. v. Gargett, 101 So. 3d 352 (Fla. 2012) ............................................................. 5

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Jones v. State, 966 So. 2d 319 (Fla. 2007) ................................................................ 5 Kasischke v. State, 991 So. 2d 803 (Fla. 2008) ....................................................... 21 Knowles v. Beverly Enterprises—Florida, Inc., 898 So. 2d 1 (Fla. 2004) ............. 10 Lamont v. State, 610 So. 2d 435 (Fla. 1992) ........................................................... 21 Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297 (Fla. 2002) ..................... 10 Perkins v. State, 574 So. 2d 1310 (Fla. 1991) ......................................................... 21 Raymond James Fin. Servs, Inc., v. Phillips, 126 So. 3d 186 (Fla. 2013) ................ 5 Reino v. State, 352 So. 2d 853 (Fla. 1977) ............................................................. 21 Ring v. Arizona, 536 U.S. 584 (2002) ..................................................................... 18 Samara Dev. Corp. v. Marlow, 556 So. 2d 1097 (Fla. 1990) ................................... 8 Stanford v. State, 706 So. 2d 900 (Fla. 1st DCA 1998) ............................................ 7 State v. Burris, 875 So. 2d 408 (Fla. 2004) ............................................................... 9 State v. Byars, 823 So. 2d 740 (Fla. 2002) ............................................................. 21 State v. Deck, 303 S.W. 3d 527 (Mo. 2010) ........................................................... 20 State v. Dixon, 283 So. 2d 1 (Fla. 1973) ................................................................. 15 State v. Pandeli, 161 P. 3d 557 (Ariz. 2007) .......................................................... 20 State v. Ruiz, 863 So. 2d 1205 (Fla. 2003) ................................................................ 6 State v. Whitfield, 107 S.W. 3d 253 (Mo. 2003) ......................................... 18, 19, 20 Velez v. Miami–Dade County Police Dep’t, 934 So. 2d 1162 (Fla. 2006) ............................................................................................................. 6 Wilson v. State, 225 So.2d 321 (Fla.1969) .............................................................. 15

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Woldt v. People of Colorado, 64 P. 3d 256 (Colo. 2003) ....................................... 20 Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., __ U.S. __, 127 S. Ct. 1534 (2007) ........................................................................................ 12 Statutes § 775.082, Fla. Stat. (1972, 1998) .................................................................... passim Chapt. 72-118, Laws of Fla. (1972) ........................................................................ 16 Chapt. 74-383, Laws of Fla. (1974) ........................................................................ 16 Other Authorities CS/HB 3033, Bill Res. & Econ. Impact Stat. (Feb. 4, 1998) .................................. 17

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STATEMENT OF IDENTITIES AND INTERESTS OF AMICI CURIAE

Amici Curiae are individuals and organizations. The individuals have held the

following relevant positions, among others: justices and chief Justices of the

Supreme Court of Florida, judge on the United States Court of Appeals for the

Eleventh Circuit, Florida Bar president, American Bar Association presidents,

Florida State University president, member of the Florida House of Representatives,

chairs of the Florida Constitution Revision Commission, chairs of the Florida

Commission on Ethics, chief prosecutor of the Homicide and Capital Crimes

Division of the Miami-Dade State Attorney’s office, and director of the Felony and

Special Prosecution Divisions of the Fourth Judicial Circuit’s State Attorney’s

Office. All amici, their qualifications, and their interests in this cause are identified

below.

Individuals

The Honorable Harry Lee Anstead was a trial and appellate attorney until

1977, when he joined the Fourth District Court of Appeal, for which he served as

chief judge. In 2002, Governor Lawton Chiles appointed then-Judge Anstead to the

Florida Supreme Court, on which he subsequently became Florida’s 50th chief

justice. Justice Anstead retired from the Court in 2009.

Martha Barnett is a retired senior partner in the law firm of Holland & Knight.

Her primary areas of practice were administrative, governmental law, and public

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policy. Ms. Barnett served as chair of the Florida Commission on Ethics (1986-

1987), and of the Florida Constitution Revision Commission (1997-1998), and was

a member of the Florida Taxation & Budget Reform Commission (1990-1994) and

(2007-2008).

An attorney involved in public service nationwide, Ms. Barnett served as

president of the American Bar Association (2000-01), chairwoman of the ABA’s

House of Delegates (the first woman to serve in this position), and president of the

American Endowment (2014-15).

The Honorable Rosemary Barkett was appointed to the Fifteenth Judicial

Circuit Court by Governor Bob Graham in 1979, and to the Fourth District Court of

Appeal by Governor Graham in 1984. In 1985, Justice Barkett became the first

woman appointed to the Florida Supreme Court, and she later became the first

female chief justice of the Court. In 1994, Justice Barkett was named to the United

States Court of Appeals for the Eleventh Circuit, where she served until 2013, when

she joined the Iran-United States Claims Tribunal, on which she currently serves.

Judge Barkett has served on the faculty of Florida’s Judicial College, the

National Judicial College, and the Institute of Judicial Administration’s New

Appellate Judges Seminar.

Henry Coxe is a partner in the Bedell Law Firm in Jacksonville, at which he

specializes in criminal defense work in federal and state courts. He served as

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president of the Florida Bar from 2006-07, and was a member of the Board of

Governors from 1997-2007. He has served in various capacities to assist this Court,

including as a member of the Florida Supreme Court Innocence Commission, the

Court’s Criminal Steering Committee, and the Court’s Judicial Qualifications

Commission. Mr. Coxe is a former prosecutor in the Fourth Judicial Circuit’s State

Attorney’s Office, for which he served as the director of the Felony Division and the

Special Prosecution Division.

Talbot “Sandy” D’Alemberte served as president of Florida State University

from 1994-2003, and Dean of its College of Law from 1984-1989. He was a member

of Florida’s House of Representatives from 1966-1972. As a representative from

Dade County, President D’Alemberte chaired the Judiciary Committee, which

drafted and passed a major judicial reform constitutional amendment in 1972. He

was named Most Outstanding Member of the House that year.

After leaving the House, President D’Alemberte chaired the Florida

Commission on Ethics (1974-75), and the Florida Constitution Revision

Commission (1977-78). He served as President of the American Bar Association

from 1991-92. President D’Alemberte currently is a Professor of Law at FSU and a

partner in D’Alemberte & Palmer, at which he practices appellate work.

The Honorable Gerald Kogan was the chief prosecutor of the Homicide and

Capital Crimes Division of the Miami-Dade State Attorney’s Office. In 1980,

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Justice Kogan was appointed to the Eleventh Judicial Circuit Court, and in 1984, he

was appointed administrative judge of that court’s criminal division. Justice Kogan

was appointed to the Florida Supreme Court in 1987, where he served as Chief

Justice from 1996 until his retirement from the Court in 1998.

Organizations

The Florida Association of Criminal Defense Lawyers (“FACDL”) is a

statewide organization representing over 2,000 members, all of whom are criminal

defense practitioners. FACDL is a nonprofit corporation whose goal is to assist in

the reasoned development of Florida’s criminal justice system. Its founding purposes

are: promoting study and research in criminal law and related disciplines, ensuring

the fair administration of criminal justice in the Florida courts, fostering and

maintaining the independence and expertise of criminal defense lawyers, and

furthering the education of the criminal defense community.

Florida Capital Resource Center (FCCR) is a nonprofit organization whose

mission is to protect the constitutional rights of Florida capital defendants by

assisting counsel in providing effective representation. FCRC provides free

consultations, research, training, advocacy, and other resources to capital defendants

and their counsel.

Florida Center for Capital Representation (FCCR) at Florida International

University College of Law was founded in 2014 to support defense attorneys

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representing defendants facing the death penalty in Florida. To that end, FCCR

provides free case consultation and litigation-support services, as well as capital-

litigation training programs to defense attorneys and mitigation specialists across the

State. With a strong emphasis on developing mitigation to obtain death-penalty

waivers and pleas, FCCR seeks to train and assist capital-defense teams in resolving

cases short of a death sentence.

Interest of Amici

The issue before the Court concerns the ramifications for death-sentenced

defendants emanating from the Supreme Court’s decision in Hurst v. Florida.

Amici, as academics, attorneys, resource counsel, and a sitting Judge on the Iran –

United States Claims Tribunal, who devote or have devoted much of their time and

efforts to safeguarding the constitutional rights of capital defendants, believe that we

have particular interest and expertise in the question before the Court as to the

appropriate remedy following Hurst v. Florida.

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SUMMARY OF THE ARGUMENT

Hurst v. Florida held Florida’s death penalty statute unconstitutional. Section

775.082(2) of the Florida Statutes requires that, in the event the death penalty in a

capital felony is held unconstitutional by this Court or the Supreme Court of the

United States, the person who has been previously sentenced to death must be re-

sentenced to life imprisonment. The statute uses the mandatory directive “shall” and

suffers no ambiguity.

Relying on only the plain terms of the statute, which this Court’s rules of

statutory construction mandate, the legislative intent is manifest. The statute contains

no qualifying or limiting terms as to the ground(s) or breadth of unconstitutionality

required to invoke it, nor the number of individuals on death row who stand to

benefit from the remedy. Statutory exceptions are to be narrowly construed, and the

one exception, added years after the statute’s enactment, precludes the provisions

application in the event that Florida’s method of execution is held unconstitutional,

not the death-penalty sentencing procedure. Reading the statute as a whole, it is

patent that the first (original) sentence establishes the general rule that governs here,

while the second (the amendment) permits but one exception.

The consequence of applying the statute as written is in keeping with what the

1972 Legislature—and all those since—have long set forth as Florida policy, and

with this Court’s practice even before the statute’s effective date. When Furman v.

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Georgia held that three, non-Florida death sentences were unconstitutional, this

Court ordered that 100 death-sentenced Florida defendants have their sentences

reduced to life imprisonment. The Court held that that sentence was the maximum

that could be imposed on others in the pre-trial stage, thus affording swift, efficient,

equal, and fair application.

Of course, if the result compelled by the plain language of the statute could

be viewed as “absurd,” the Court would then look to the statute’s legislative history

to divine legislative intent. That history only buttresses what the plain language

directs. A year after the Court’s sweeping reduction of sentences for death row

inmates and presentencing capital defendants, the Legislature eliminated the

provision of section 775.082 that provided the same remedy to defendants who had

been convicted or charged capitally, but had not yet been sentenced, leaving the

statute applicable solely to those on death row, post-sentencing. In doing so,

lawmakers had the opportunity to eliminate subsection (2) in the wake of this Court’s

sweeping grant of relief, and it declined to do so, except as to the class of capital

defendants who had not yet been sentenced to death.

The Legislature provided an exception to the statute again in 1998, when the

constitutionality of Florida’s method of execution was before this Court for

consideration. Rather than eliminating the mandate that unconstitutional death

sentences be reduced to life without parole, the Legislature again chose simply to

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circumscribe the breadth of the remedy, by providing that the statute was not to apply

if the method of execution were invalidated, just if a death sentence itself were held

unconstitutional.

Thus, as to death row inmates, the Legislature has maintained essentially the

identical statute, with the same plain language and underlying intent, that it enacted

shortly after certiorari was granted by the Supreme Court in Furman. Thus, before

the decision in Furman, after the decision in Furman, before this Court’s mass

commutation, as well as long after, the Legislature has consistently made clear that

where a death sentence (or in this case, the death penalty sentencing statute, and

therefore all death sentences) is held unconstitutional, the trial court with jurisdiction

over the case must resentence the death row inmate to life in prison. That not only

remains the case after Hurst v. Florida, but the statute’s application is far more clear

now than it was following the United States Supreme Court’s decision in Furman,

in which no Florida death sentences were under review.

The final statutory directive, the rule of lenity codified in the Florida statutes,

dictates that criminal statutes must be strictly construed. Any question or ambiguity,

if such could be identified, must be resolved in favor of the criminal defendant.

ARGUMENT AND CITATIONS OF AUTHORITY

I. Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced

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to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

On January 12, 2016, the Supreme Court of the United States held that

Florida’s capital sentencing scheme violates the Sixth Amendment to the United

States Constitution. Hurst v. Florida, 136 S. Ct. 616 (2016). The Court stated:

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.

* * * Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

Id. at 619, 624. This Court is now grappling with who is affected by the Hurst decision and

what form of relief should be granted. Amici Curiae believe that the resolution is

conclusively provided by a straightforward application of statutory-construction

guidelines to Florida’s criminal sentencing statute, section 775.082(2), of the Florida

Statutes. This provision provides:

In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1). No sentence of death shall be reduced as a result of a determination that a method of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States.

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Based on a plain-language reading of this statute, persons previously sentenced to

death for a capital felony prior to the decision in Hurst v. Florida, are entitled to

have their death sentences replaced by sentences of life without parole.

A. Basic rules of statutory construction require that this Court apply the unambiguous, plain language of section 775.082(2).

This Court repeatedly has mandated that the judicial examination of a statute

begin with its plain language. See Alachua Cty. v. Expedia, Inc., 175 So. 3d 730,

733 (Fla. 2015); Diamond Aircraft Indus. Inc. v. Horowitch, 107 So. 3d 362, 367

(Fla. 2013); J.M. v. Gargett, 101 So. 3d 352, 356 (Fla. 2012). Under this approach,

when a statute’s text is clear and “conveys a clear and definite meaning, that meaning

controls.” Gargett, 101 So. 3d at 356. This method offers the best means to ascertain

and give effect to the legislature’s intent in enacting the statute, which serves as the

“polestar,” as this Court has often described it, of statutory interpretation. See

Raymond James Fin. Servs, Inc., v. Phillips, 126 So. 3d 186, 190 (Fla. 2013) (citation

omitted); Hill v. Davis, 70 So. 3d 572, 575 (Fla. 2011) (a statute’s text is the “most

reliable and authoritative expression” of the legislature’s intent.).

By beginning statutory interpretation with a search for plain meaning, the

Court has recognized its own, limited constitutional role: When the text speaks

clearly and without ambiguity, the judiciary’s proper role is simply to apply it.

Gomez v. Vill. of Pinecrest, 41 So. 3d 180, 185 (Fla. 2010); Velez v. Miami–Dade

County Police Dep’t, 934 So.2d 1162, 1164-65 (Fla. 2006) (“We are without power

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to construe an unambiguous statute in a way which would extend, modify, or limit,

its express terms or its reasonable and obvious implications. To do so would be an

abrogation of legislative power.”). Indeed, even when the court believes the

Legislature intended a meaning different from that expressed in the plain language

of a statute, the Court “will not deem itself authorized to depart from the plain

meaning of the [statutory] language which is free from ambiguity.” State v. Ruiz,

863 So. 2d 1205, 1209 (Fla. 2003). In short, this Court, in applying section

775.082(2), should begin and end its interpretation with the statute’s plain,

unambiguous meaning.

B. Section 775.082(2) unambiguously requires that all capital felons whose death sentences have been imposed under the now-unconstitutional statute be resentenced to life in prison.

The plain language contained in the first sentence of section 775.082(2) could

not offer a clearer command: Upon the condition precedent that the death penalty

in a capital felony is held unconstitutional by this Court or the United States Supreme

Court, the court having original jurisdiction over the case “shall” resentence the

defendant to life imprisonment. The statute gives the trial court no discretion, as

“shall” is presumptively mandatory. See Grip Dev. Inc. v. Caldwell Banker

Residential Real Estate, Inc., 788 So. 2d 262, 265 (Fla. 4th DCA 2000); Stanford v.

State, 706 So. 2d 900, 902 (Fla. 1st DCA 1998).

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The Supreme Court in Hurst held the Florida death penalty scheme

unconstitutional. Hurst, 136 S. Ct. at 619 (“Florida’s sentencing scheme, which

required the judge alone to find the existence of an aggravating circumstance, is

therefore unconstitutional.”). Thus, the condition precedent of the statute is satisfied

and the circuit courts having jurisdiction shall vacate Appellants’ death sentences

and impose sentences of life without parole. See § 775.082(2), Fla. Stat.

This remedy is also dictated by the lack of any qualifying or limiting language

in the statute. Had the Legislature intended to limit the automatic and obligatory

reduction of death sentences to life imprisonment to decisions holding that the death

penalty is unconstitutional across the board, or to Eighth Amendment violations

rather than to violations under the United States and/or Florida constitutions in toto,

the Legislature could have enumerated such limitations; but it did not. This is

underscored by the fact that, in 1998, many years after the statute was enacted, the

legislature did preclude the replacement of a death sentence with a life sentence, but

only based on a determination that the method of execution was held

unconstitutional. See § 775.082(2), Fla. Stat. (1998); App. at 11, 33 (amending

statute to add: “No sentence of death shall be reduced as a result of a determination

that a method of execution is held to be unconstitutional under the State Constitution

or the Constitution of the United States.”). See also Section E, infra.

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Exceptions in statutes are “narrowly and strictly construed.” See Samara Dev.

Corp. v. Marlow, 556 So. 2d 1097, 1100-01 (Fla. 1990). And the “doctrine of in

pari materia is a principle of statutory construction that requires that statutes relating

to the same subject or object be construed together to harmonize the statutes and to

give effect to the Legislature’s intent.” Fla. Dep’t of State, Div. of Elections v.

Martin, 916 So. 2d 763, 768 (Fla. 2005). Construing together the two sentences,

then, the first sentence establishes the general rule, with the second establishing the

one exception. As enacted, the section’s first sentence—whether read in isolation

or in pari materia with the second sentence—plainly commands this Court to reduce

to a life sentence any death sentence imposed under the statute held unconstitutional

by Hurst v. Florida.

The fact that a specific statute so specifically provides the remedy for persons

previously sentenced to death under the unconstitutional statute distinguishes this

case from the vacuum in legislative remedies with which the Court was confronted

last year in the juvenile-sentencing context. See Horsley v. State, 160 So. 3d 393

(Fla. 2015). There, the Court acknowledged the limitations imposed by the

separation of powers, in explaining why it could not create its own sentencing

remedy:

[W]e could fashion our own remedy, . . . based solely on the requirements established by the United States Supreme Court in Miller. Although this option would satisfy our duty to give effect to the pronouncements of the United States Supreme Court, it would also

9

require us to ignore the primary role of the Legislature in criminal sentencing by crafting a remedy without a statutory basis. Therefore, we conclude that this remedy is inconsistent with our respect for the separation of powers.

Id. at 405.

The Court chose to apply the newly enacted juvenile-sentencing statute as the

alternative most consistent with legislative intent. And the Court must do the same

thing here, with the distinction that there is no void to fill or reason to search for

what might be the best choice for effecting legislative intent. There is a long-

standing statute that precisely governs. The plain language of section 775.082(2)

dictates the only alternative consistent with “respect for the separation of powers.”

Id.

C. Because the unambiguous plain language of section 775.082(2) produces a reasonable, non-absurd result, the Court need not consider the statute’s legislative history, under its rules of statutory construction.

Given the clarity of section 775.082(2), the only context in which this Court

could consider its legislative history is if the statute’s plain terms would produce an

absurd result. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted).

See also Knowles v. Beverly Enterprises—Florida, Inc., 898 So. 2d 1 (Fla. 2004)

(“[B]ecause the language of the statute is clear and unambiguous, the analysis must

end there.”).

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But the remedy drawn by the Legislature, as limited in 1998 to sentences

rather than methods of execution, see App. at 11, 33, was and is eminently

reasonable. While the constitutional invalidation of a method of execution does not

call into question the validity of the underlying death sentence, a conclusion that the

process used to impose that death sentence is unconstitutional, does so inescapably.

Cf. Austin v. State ex rel. Christian, 310 So. 2d 289, 292 (Fla. 1975) (any doubts

about the scope of a statute may be resolved by consideration of such factors as

convenience, sound public policy, or the “due administration of justice”).

To be sure, subsection (2)’s first sentence has widespread implications. But

as Justice Scalia put it in his concurrence in Conroy v. Aniskoff, 507 U.S. 511, 528

(1993), “The language of the statute is entirely clear, and if that is not what Congress

meant then Congress has made a mistake and Congress will have to correct it.”

Moreover, this is not the first time that this Court has faced such a sweeping outcome

following the invalidation of the death penalty, and it would not be the first time that

the Court has determined that a life sentence (or term of years) must be imposed on

every individual on death row. See In re Baker, 267 So. 2d 331, 335 (Fla. 1972)

(considering the application of 60 death-sentenced defendants and holding that after

Furman v. Georgia, 408 U.S. 238 (1972), “it is clearly to the best interest of the

public that this Court impose [life] sentences upon. . . all of the . . . persons under

penalty of death who have been convicted of [capital] murder[.]”; Anderson v. State,

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267 So. 2d 8 (Fla. 1972) (holding that death sentences of 40 defendants pending on

appeal must be vacated following Furman and imposing life sentences rather than

remanding to the circuit courts for consideration under Rule 3.800, based on the lack

of discretion regarding what sentence to impose and the public policy concerns that

justified the Court’s exercise of jurisdiction to resentence the appellants).

In short, this Court has previously dealt with the remedy question which

devolves from the Supreme Court’s holding that the death-penalty process is

unconstitutional, and did not hold then that the remedy set forth in sections

775.082(2) and (3) was “absurd.” Quite the contrary—the Court reasoned that the

proper course was not a piecemeal, case-by-case review, but rather, to reduce to life

imprisonment the death sentences unconstitutionally imposed. This is indeed the

remedy that the Legislature long and consistently has mandated by enactment and

re-adoptions of section 775.082(2). The remedy has no cap on its application, nor

could it and still remain constitutional. Thus, by passing, amending, and maintaining

the statute, even after this Court commuted all death sentences to life imprisonment

following Furman, the Legislature has demonstrated its view that such result is not

absurd.1

1See, e.g., Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., __ U.S. __, 127 S.

Ct. 1534, 1559 (2007) (Scalia, J., dissenting) (“The only sure indication of what Congress intended is what Congress enacted . . . . We must interpret the law as Congress has written it, not as we would wish it to be.”).

12

D. The legislative history of section 775.082 also supports the remedy required by the statute’s plain language.

While the plain language of an unambiguous statute provides the first and only

basis of inquiry as to its scope, the legislative history of section 775.082(2) only

buttresses its unequivocal language.

1. This Court previously has interpreted section 775.082(2)’s legislative intent as requiring the imposition of life sentences even in the absence of a categorical ban on the death penalty.

(a) Senate Bill 153

Senate Bill 153, enacting section 775.082(2) and (3), was pre-filed in August,

1971, just after the Supreme Court granted certiorari in Furman. See Furman v.

Georgia, 403 U.S. 952 (1972) (granting certiorari June 28, 1971). The provisions

provided as follows:

(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, a person who has been convicted of a capital felony shall be punished by life imprisonment. (3) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment.

(App. at 1-2) (emphasis added). The preamble to the bill described these provisions

as “providing that if the courts declare the death penalty unconstitutional, then those

13

persons to be sentenced or those previously sentenced to death should be sentenced

to life without parole.” (App. at 1.)

The timing of SB 153 may suggest to some that it was intended solely to

provide a reasonable remedy should the United States Supreme Court hold in

Furman that the death penalty was per se unconstitutional under the Eighth

Amendment—i.e., that sections 775.082(2) and (3) were never intended to apply in

perpetuity, nor, indeed, if anything less than a categorical ban was imposed by the

Furman Court. Not only does the plain language of the statute belie such

interpretation,2 but this Court’s decisions in the wake of Furman, and subsequent

amendments to the statute, make clear that such suggestion bears no relationship to

the actual legislative intent behind the bill.

First, Furman did not “declare the death penalty unconstitutional” (quoting

Preamble to SB 153 (1971)), nor was the systemic application of the death penalty

even explicitly before the Court when it granted certiorari in Furman. Furman, 408

U.S. at 239 (“Certiorari was granted limited to the following question: ‘Does the

imposition and carrying out of the death penalty in (these cases) constitute cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments?’”)

2 Section 775.082(2) provides that life without parole shall be applied by the

trial court if a “death sentence” is held unconstitutional, not “the death penalty.” Moreover, the statute does not limit the remedy to an Eighth Amendment violation. 775.082(2), Fla. Stat. (1972).

14

(quoting 403 U.S. 952 (1971)) (emphasis added). Rather, the five justices who joined

the one-paragraph majority opinion agreed only that the three death sentences from

Georgia and Texas before the Court violated the Eighth Amendment.3

Second, this Court also never explicitly held the “death penalty”

unconstitutional, even after Furman. See Baker, 267 So. 2d at 331 (“This Court has

itself never declared the death penalty unconstitutional, but has recognized and

followed the decision of the United States Supreme Court in Furman v. Georgia,

[s]upra.”) (citing Donaldson v. Sack, 265 So. 2d 499 (1972), and Anderson, 267 So.

2d 8); State v. Dixon, 283 So. 2d 1, 7 (Fla. 1973) (“Capital punishment is not, [p]er

se, violative of the Constitution of the United States (Furman v. Georgia, supra) or

of Florida. Wilson v. State, 225 So.2d 321 (Fla. 1969).”).

Nonetheless, the Court “had no difficulty” holding that defendants indicted

for a “former” capital offense should automatically be sentenced to life in prison

3 The majority holding in Furman was as follows:

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (reversing three death sentences). Each of the five justices in the majority wrote separately to explain his reasoning for the result; thus, the majority holding consists solely of the above paragraph.

15

upon conviction, id. at 501, and that the same was the case for defendants who had

already been sentenced to death, Anderson, 267 So. 2d 8. Notably, in reaching this

conclusion, the Court gave

general consideration to any effect upon the current legislative enactment [referencing § 775.082(3)] to commute present death sentences. . . . The statute was conditioned upon the very holding which has now come to pass by the U.S. Supreme Court in invalidating the death penalty as now legislated. This provision is not before us for review and we touch on it only because of its materiality in considering the entire matter.

Donaldson, 265 So. 2d at 505 (emphasis added). See also id. at 502 (noting that such

result was not only proper under the severability doctrine, but consistent with the

Legislature’s “express intent” as demonstrated in section 775.082(2), which was to

become effective less than three months later) (quoting Chapt. 72-118, Laws of Fla.

(1972)).

The effect, then, of Furman’s reversal of just three death sentences was a

swift, fair, and across-the-board remedy employed even before the statute that

commanded it was operative. Months after Furman, Chapter 72-118 inexorably

went into effect without interruption and the first half of section 775.082(2)

(originally numbered section 775.082(3)), has remained unchanged for decades.

Thus, any suggestion that it applies, or was meant to apply, solely to the particular

circumstances posed by Furman, or when this Court or the Supreme Court

16

categorically bans the death penalty—nationwide or in Florida—is incorrect based

on this Court’s own interpretation of the statute’s legislative intent.

(b) The legislative history of section 775.082(2) only buttresses the statute’s plain language, and this Court’s previous construction thereof.

In 1974, the Legislature revoked subsection (2), substituting the language

from subsection (3) in its place. Chapt. 74-383, s. 5, Laws of Fla. (1974); App. at 11.

Because the Legislature revoked the remedy of life without parole as to one class of

offenders (capital defendants pending sentencing), but not with regard to the other

(defendants already sentenced to death), it necessarily deliberated upon the scope of

the statute. And subsection (2) remained intentionally on the books after Furman.

Perhaps most compelling, the Legislature revisited section 775.082(2) again,

in 1998, when doubts arose about the constitutionality of Florida’s method of

execution. House Bill 3033 proposed adding the following after the first and only

sentence previously in subsection (2): “No sentence of death shall be reduced as a

result of a determination that a method of execution is held to be unconstitutional

under the State Constitution or the Constitution of the United States.” § 775.082(2),

Fla. Stat. (1998); see also App. at 31-3.

The House of Representatives’ Committee on Crime and Punishment noted

that the limitation was proposed to avoid what Justice Harding previously described

as a “‘constitutional train wreck’ with all the people on Death Row having their

17

sentences commuted to life unless an alternative to electrocution is passed by the

legislature.” CS/HB 3033, Bill Res. & Econ. Impact Stat., at 2 (Feb. 4, 1998) (citing

Anderson, 267 So. 2d 8; Furman, 408 U.S. 238)); App. at 36-7.

Thus, the Legislature was aware of the statute and considered its terms. The

Legislature, then, chose to make one exception to the mandate that when a death

sentence is held unconstitutional, the trial court of jurisdiction must impose a

sentence of life imprisonment on the death row inmate. That lone exception is where

the unconstitutionality of the death sentence is premised on the execution method.

The rest of the statute, the general rule for all other holdings of “death-penalty”

unconstitutionality, remained, and still remains, untouched.

In short, the 1974 and 1998 amendments to section 775.082(2) demonstrate

that the Legislature meant what it said in 1972. The statute is not ambiguous, nor is

the result urged herein absurd. But should the Court find it necessary to examine the

legislative history to determine the legislature’s intent, it will find only support of

the plain language.

(c) Immediately following Ring, the Colorado and Missouri supreme courts applied the same remedy sought by Appellants under statutes virtually identical to section 775.082(2).

In applying the remedy mandated by section 775.082(2), this Court would be

in line not only with its own precedent, but that of other states with virtually identical

statutes. Following the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584

18

(2002), the Supreme Court of Missouri held its death-sentencing statute

unconstitutional under the Sixth Amendment. State v. Whitfield, 107 S.W. 3d 253,

264 (Mo. 2003). After holding Ring retroactive and rejecting the assertion that the

constitutional error could be harmless without evidence of what the jury found, id.

at 262-69, the Court refused the state’s request to remand for a new sentencing

hearing. Id. at 269-72. Turning to a 1984 statute substantially identical to section

775.082(2), the Court noted that the remedy “anticipated” and “required” by the

Legislature was to vacate the appellant’s death sentence and impose a life sentence:

Because the imposition of Mr. Whitfield’s death sentence has been determined to be in violation of his right under the Sixth and Fourteenth Amendments to a jury determination of the facts rendering him eligible for death, section 565.040.2 clearly applies.

Id. at 271. Like Florida’s statute, the Missouri statute “expressly states that a

defendant whose sentence is vacated on constitutional grounds shall be resentenced

to life in prison.” Id. Similarly, its application is not limited to systemic, death-

penalty proscriptions under the Eighth Amendment:

[The statute] does not . . . state that a defendant shall be sentenced to life imprisonment only if his death sentence is held unconstitutional on the basis that the defendant was never really eligible for the death penalty in the first place, such as defendants who are mentally retarded or as to whom no aggravator applies, and that defendants whose sentences are overturned on procedural grounds shall receive new trials. Rather, it states that “[i]n the event that a death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court . . . shall sentence the defendant to life imprisonment.

Id. (emphasis, brackets and second ellipses in original). The court subsequently

19

confirmed that the remedy of life imprisonment would not be required for “some

unrelated trial error,” but was mandated in Whitfield because of exactly the same

defect at issue in Florida: the “‘entry of a judgment of death based on the judge’s

findings’ in violation of Ring, which made the death sentence itself

unconstitutional.” State v. Deck, 303 S.W. 3d 527, 534 (Mo. 2010) (en banc)

(quoting Whitfield, 107 S.W. 3d at 270 n.20).

The Supreme Court of Colorado employed the identical remedy in Ring’s

aftermath based on the legislative directive of a similar statute. Rejecting the

argument that a discretionary statute enacted in 2002 permitting a remand for a new

sentencing should govern, the Court applied the long-standing mandatory statute that

required resentencing to life imprisonment “[i]n the event the death penalty as

provided for in this section is held to be unconstitutional by the Colorado supreme

court of the United States supreme court. . . .” Woldt v. People of Colorado, 64 P.

3d 256, 267 (Colo. 2003).4 Life sentences were required.

E. The rule of lenity also requires resentencing to life imprisonment without any opportunity for parole.

If any doubt could remain about the intended application of §775.082(2), the

“Rule of Lenity” dictates that the statute be construed in the manner most favorable

4 By contrast, the Arizona Supreme Court declined to follow Woldt on the

basis that the Colorado court had not examined severability of its death sentencing statute. State v. Pandeli, 161 P. 3d 557, 574 (2007).

20

to the capital defendant. See, e.g., Reino v. State, 352 So. 2d 853, 860 (Fla. 1977).

This statutory-construction tool has long been codified in the Florida Statutes,

providing: “The provisions of this code and offenses defined by other statutes shall

be strictly construed; when the language is susceptible of differing constructions, it

shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (1983).

This Court has not hesitated to apply this mandate when necessary to avoid

what would otherwise amount to judicial lawmaking. See Perkins v. State, 576 So.

2d at 1312 (“Words and meanings beyond the literal language may not be entertained

nor may vagueness become a reason for broadening a penal statute.”); accord

Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008) (recognizing that the lenity rule

“is not just an interpretive tool but a statutory directive.”); Lamont v. State, 610 So.

2d 435, 437-38 (Fla. 1992).

Section 775.082(2) is neither vague nor ambiguous. The first sentence of the

statute is clear in its mandate. But if there could be any ambiguity, it must be

resolved in favor of the capital defendant.

CONCLUSION

Based upon the plain and unambiguous language of section 775.082(2), its

legislative history, and/or the rule of lenity, this Court must order the vacatur of the

death sentences imposed in the cases at bar and remand them to the circuit courts to

resentence each defendant to life imprisonment without the possibility of parole.

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Respectfully submitted,

/s/Robert C. Josefsberg /s/Robert G. Kerrigan Podhurst Orseck, P.A. Kerrigan, Estess, Rankin, McLeod City National Bank Bldg. & Thompson, LLP 25 West Flagler St., Ste. 800 P.O. Box 12009 Miami, FL 33130 Pensacola, FL 32591 (305) 358-2800 (850) 444-4444 Fla. Bar No. 40856 Fla. Bar No. 134044 rjosefsberg@podhurst.com bob@kerrigan.com /S/Karen M. Gottlieb /s/Sonya Rudenstine Fla. Center for Capital Representation Attorney at Law FIU College of Law 528 N. Main Street 11200 S.W. 8th Street, RDB 1010 Gainesville, FL 32601 Miami, FL 33199 (352) 359-3972 (305) 348-3180 Fla. Bar No. 0711950 Fla. Bar No. 0199303 srudenstine@yahoo.com Karen M. Gottlieb@gmail.com

22

CERTIFICATE OF SERVICE Undersigned counsel hereby certify that a true and correct copy of the

foregoing has been furnished via email service, this the 3rd day of May, 2016, to:

Hurst v. State, SC12-1947 Bevel v. State, SC14-770 Carine Mitz, AAG Carine Mitz, AAG carine.mitz@myfloridalegal.com carine.mitz@myfloridalegal.com Dave A. Davis, APD Rick A. Sichta David.davis@flpd2.com Joe Hamrick Susanne K. Sichta Oliver v. State, SC12-1350 rick@sichtalaw.com Suzanne Bechard, AAG suzanne.bechard@myfloridalegal.com Nancy Ryan, APD ryan.nancy@pd7.org

CERTIFICATE OF COMPLIANCE

Undersigned counsel hereby certifies pursuant to Florida Rule of Appellate

Procedure 9.210(a)(2) that this brief complies with the type-font limitation.

Respectfully submitted,

/s/Robert C. Josefsberg /s/Robert G. Kerrigan Fla. Bar No. 40856 Fla. Bar No. 134044 /s/Karen M. Gottlieb /s/Sonya Rudenstine Fla. Bar No. 0199303 Fla. Bar No. 0711950